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CIVIL DISOBEDIENCE IN
ST. THOMAS AQUINAS’ NATURAL LAW THEORY
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TABLE OF CONTENTS
I. Opening statement................................................................4
II. Developing, examining, and answering the central question......6
A. Laying the groundwork .....................................................7
1. The preliminary assumptions.........................................72. The conditions for civil disobedience...............................8
3. The dismissive judgment issue in Aquinas’ law.................9
B. Summarizing Aquinas’ law...............................................13
1. Aquinas classifies the types of law. ..............................132. Aquinas’ natural law....................................................14
C. Answering the central question.........................................16
1. The basis for the assessment of laws............................16
2. The assessment of Aquinas’ laws..................................183. The court of conscience...............................................19
III. Passing muster on a ‘morally difficult case’...........................23
A. The abortion arguments..................................................23
1. A fetus is only a ‘potential human’................................24
2. A fetus is not an ‘actual human’....................................25
B. The replies from Aquinas’ court of conscience....................25
1. A reply to a fetus is only a ‘potential human’..................262. A reply to a fetus is not an ‘actual human’.....................27
IV. Summing up Aquinas’ civil disobedience...............................30
V. Closing statement...............................................................31
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1
CIVIL DISOBEDIENCE IN ST. THOMAS AQUINAS’
NATURAL LAW THEORY
The purpose of this paper is to develop and explain ‘civil
disobedience’ based on Aquinas’ natural law theory.
I. Opening statement
The central question is, ‘Is civil disobedience allowed in Aquinas’
natural law theory?’ If his theory allows civil disobedience, then it
must also answer: (1) how does an individual decide that a law is
unjust, (2) how does an individual make this decision concerning
just versus unjust; and (3) what does the individual do about an
unjust law?a These questions and the central question will be
answered in this paper. At the heart of the civil disobedience
question in Aquinas’ natural law theory is the dismissive judgmentb
issue, “that which is not just does not seem to me to be a law.”c Is
a Norman Kretzmann, “Lex Iniusta Non Est Lex: Laws on Trial in Aquinas’ Court
of Conscience,” Philosophy of Law, Eds. Joel Feinberg and Hyman Gross, 5th ed. (Belmont: Wadsworth, 1995) 7-8.
b New Shorter Oxford English Dictionary, 5th ed. (Oxford: Oxford University, 2002) CD-ROM. Dismissive is defined as, "Of the nature of or characterized by
dismissal; tending to dismiss; suggesting unworthiness of any further
consideration; disdainful.” As such, a dismissive judgment is a judgment of an
object that is denied or dismissed as unworthy of any consideration.c St. Augustine, De libero arbitrio, I v 11, Kretzmann 8. Kretzmann points out that there is a problem between the quote from Augustine, “lex mihi esse non videtur, quae iusta non fuerit” and the ‘quote’ “Lex iniusta non est lex”, some philosophers attribute to Augustine and Aquinas. The later, “An unjust law is
not a law,” is opposed to the former, “To me that which is not just does not seem to be a law.”
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it a paradoxical judgment for Aquinas? Alternatively, is it a
reasoned intellectual judgment for Aquinas? Finally, may humans
disobey an unjust law? As the basis for my developing my critical
analysis of this issue, I have chosen the argument from Norman
Kretzmann’s article “Lex Iniusta Non Est Lex: Laws on Trial in
Aquinas’ Court of Conscience.”d Kretzmann’s article provides a very
insightful analysis of the dismissive judgment issue. He analyzes
and draws a valid conclusion on dismissive judgment and the
central question of civil disobedience. Additionally, he provides an
excellent analysis of Aquinas’ motives for supporting this doctrine.
Finally, with a minor modification, Kretzmann’s argument provides
an answer to the civil disobedience issue.
However, developing, examining, and answering the question of
civil disobedience in Aquinas’ natural law theory is only the start.
Does Aquinas’ account of civil disobedience hold up when explaining
a modern civil disobedience case? To answer this, we will next
examine a modern civil disobedience case in Aquinas’ court of
conscience. Should an anti-abortion activist disobey the laws of the
United States to protect “unborn” children? Does civil disobedience
in Aquinas’ natural law theory pass muster on this ‘morally difficult
case’?
d Kretzmann 7-19.
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We will use the two verdicts developed from the discussion of
the central question to inspect this ‘morally difficult case’. First,
whether or not an ‘unjust law is no law’, as moral reasoning
individuals, we must learn to weigh the cost of disobeying the law
versus obeying the unjust law, i.e., obey by ‘turning the other
cheek’ for the good of society. Second, an ‘unjust law is no law’, as
creatures of a divine being, we must always be disobeyed, i.e., such
‘an unjust law is no law’ and we have no choice but to disobey the
unjust law. Let us begin by developing and answering the central
question, “Is civil disobedience allowed in Aquinas’ natural law
theory?”
II. Developing, examining, and answering the central
question
The desideratum for answering the central question of civil
disobedience in Aquinas’ natural law theory is as follows. First, it is
essential to the theory that we understand Thomist civil
disobedience, i.e., whether the dismissive judgment, “an unjust law
is not a law”, is commonsensical or paradoxical and how can it be
used explain civil disobedience. We will begin by laying out the
preliminary groundwork, the assumptions, basis for the argument,
and the issue. Next, it is essential to the theory that we
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understand Aquinas’ conception of law, in particular the relationship
of natural and human laws. We will summarize Aquinas’ four
classifications of law and the types to be used for this analysis.
Thirdly, it is essential to the theory that we understand the Thomist
view of dismissive judgment and its motives. This will sum up the
basis for an assessment of law, Aquinas’ assessment of law, and
assessment of law in the court of conscience, the agent intellect.
A. Laying the groundwork
Let us begin by outlining the preliminary assumptions, conditions
for civil disobedience, and the issue of how to determine the justice
of a law.
1. The preliminary assumptions
Kretzmann uses Aquinas’ system as a basis for his investigation.
The focus of the discussion is on disagreements between a moral
system and a legal system. As such, disagreements between
individuals over the moral assessment of laws (e.g., people arguing
over their individual assessments of a law as just or unjust) are to
be ignored. Kretzmann also writes that in a Thomist viewpoint,
there is a fundamental connection between moral philosophy and
Christian theology. As such, Aquinas’ legal system does not
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separate morality from theology (i.e., the human beings in Aquinas’
society are Christians). Nevertheless, even with this linkage, a
secularized version of Aquinas is still proper for developing,
examining, and answering the question of civil disobedience.e
2. The conditions for civil disobedience
Dismissive judgment (i.e., a disdainful judgment that dismisses
thereby denying a premise or object) concerns whether a law is
unjust. However, in this moral judgment, what information must a
human being in a society need to determine justice? For
Kretzmann, the following questions must be answered concerning a
dismissive judgment of a law in terms of civil disobedience: f 1) can
e Kretzmann 7. And Frederick Copleston S.J., Aquinas, (Baltimore: Penguin 1957) 219. “[We] can say with truth that Aquinas believed in a set of
unalterable moral precepts. The question arises… whether [Aquinas’ moral]
theory is compatible with the empirical fact that different people and different
social groups [i.e., different religions] have divergent moral convictions [i.e.,
religious convictions]…. [However, I make] the following relevant point,
namely that differences in moral convictions do not themselves constitute a
disproof of the theory…. For there might be an unchangeable moral law and
at the same time varying degrees of insight into the content of this law” [i.e.,
reasoning humans in different social groups have just not ‘discovered’ the
unalterable moral law].f Joel Feinberg, “Civil Disobedience in the Modern World,” Philosophy of Law, Eds. Joel Feinberg and Hyman Gross, 5th ed. (Belmont: Wadsworth, 1995)
121-123. Although Kretzmann does not specifically deal with what constitutes
‘the act civil of disobedience’, which is also an important conclusion for a
discussion of civil disobedience. ‘The act of civil disobedience’ as ‘lawbreaking’
against an unjust law can have distinct flavors. A Thomist ‘act of civil
disobedience’ according to Feinberg’s article would be defined as “not to
undermine authority but to protest its misuse.” Of the flavors in the article,
Rawl’s approach to the ‘act of civil disobedience’ seems best in terms of
Aquinas, as it requires the use of ‘reason’ to determine ‘the act of civil
disobedience’. Since the use of reasoning to determine ‘the act of civil
disobedience’ would seem to be a requirement for a Thomist theory. For
Aquinas then, ‘the act of civil disobedience’ would be similar to John Rawl’s
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an individual decide whether a law is unjust; 2) how can an
individual make such a decision; and 3) what can or should the
individual do about an unjust law. g However, which kind of
dismissive judgment should apply to the law and civil
disobedience?h
3. The dismissive judgment issue in Aquinas’ law
Every thing, being, or substance has inclusive conditions that
determine its completion. Law is a thing for Aquinas. An inclusive
condition, which could be either non-evaluative or evaluative, is a
“condition” that a thing, being, or substance must have to be
“conscientious refusal” than “warfare against the state.” (Especially
considering Aquinas’ ‘doctrine of the mean’ as well as ‘perversions of law’ as
developed respectively in Summa Theologica, I-II. Q. 64 A. 1 Obj. 3. and Summa Theologica, I-II. Q. 92 A. 1 RObj. 3. Further, Aquinas does not seem to advocate armed revolt which would be far away from the ‘mean’.) The ‘act
of civil disobedience’ requires four characteristics: (1) it must be public; (2) in
must be nonviolent; (3) it must be either direct or indirect deliberate
unlawfulness; and (4) it must be conscientiously aimed towards the ‘good of
society’. Therefore, a reasoned ‘the act of civil disobedience’ as “conscientious
refusal” seems to me in alignment with Thomist philosophy.g Kretzmann 9. Kretzmann’s paper is contingent on the plausibility of the notion
of civil disobedience: its role, justification, and nature. Kretzmann deals
thoroughly with the justification for civil disobedience. However, Kretzmann
seems unaware in the article that he is facing a problem in the areas of the
role and nature of civil disobedience; I feel that he has left his argument open
to questioning in these two areas. In spite of this, for the purpose of this
paper I feel that we can properly explain Aquinas and civil disobedience
without specifically dealing with the distinctions concerning the role and nature
of civil disobedience. It seems to me that for Aquinas, an entitlement for the
‘role of civil disobedience’ might be understood as both a ‘right’ and a ‘duty’ to
disobey the unjust law, i.e., for unjust laws vis-à-vis ‘divine law’ there is a duty to civil disobedience and for unjust laws vis-à-vis ‘reasoning to the natural law’ there is a mere right to civil disobedience. Please note: The ‘nature’ or the act of civil disobedience was discussed in a previous footnote.
Thank you to Dr. Corlett for pointing out this problem with Kretzmann’s article.h Kretzmann 7-8.
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considered complete. Non-evaluative means that the thing simply
has the condition (e.g., the leg of a chair is a non-evaluative
condition of “chair-ness”). Evaluative conditions are abstracted by
reason to determine whether the conditions for inclusion in the form
of the thing have been met (e.g., “masterpiece” is an evaluative
condition of “musical masterpiece”, because an evaluation must be
made to determine inclusion).i
There are two of the kinds of things: non-natural conventional
kinds and natural conventional kinds.j Of non-natural conventional
kinds, their inclusive conditions are non-evaluative (e.g., for a
Haiku poem or soldier, they simply need to meet the defining
conditions). Of the natural conventional kinds, some are overtly
and invariably evaluative. An example of this would be fine artwork
or gifted person where an evaluation determines whether the
condition is met for its inclusion. There are also natural
conventional kinds that are not overtly or invariably evaluative.
Evaluative conditions that are not overt involve implicit evaluative
conditions and are linked with things that have a familiar human
function. An illustration of this would be artwork or anthropologist.
For these kinds of things with non-overt evaluative conditions, the
i Kretzmann 8.j Kretzmann 8.
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non-evaluative conditions must be met before applying the
evaluative (i.e., “He is no general,” makes sense only if “A bad
general is not really a general, despite the fact that he holds the
rank and commands an army”). Is it the natural conventional kind
of things, with conditions that are both non-evaluative and
evaluative, but not overtly or invariably evaluative, and has an
important human function, which is the appropriate kind to apply
dismissive judgment?k It is here that Kretzmann’s argument has a
problem interpreting Aquinas.
The problem with Kretzmann’s argument is, “How do you explain
‘without being overtly evaluative’ condition in Aquinas?” l The
etymology of ‘overt’ is the Latin word aperire–exposed to view or
knowledge, open, evident, straightforward.m Is Kretzmann correctly
saying, “Without being exposed, evident and open to knowledge”?
Is this not a contradiction of Aquinas’ writings? For Aquinas,
humans possess a unique inclination towards reason.n This
k Kretzmann 9.l There is another problem, that of conscientia or synderesis? Which ‘conscience’ from Aquinas do you use? [Aquinas, Summa Theologica, I. Q. 79 A. 12 and I. Q. 79 A. 13. The Human Constitution, trans. Richard Regan, (Scranton: University of Scranton Press, 1997) 75-78.] While Kretzmann
points out that he is aware that he is facing a problem in this area, I feel that
he has left his argument open to question form this area as well. However, for
the purpose of this paper I feel that we can properly explain Aquinas and civil
disobedience without specifically dealing with this distinction.m The Shorter Oxford English Dictionary.n St. Thomas Aquinas, Summa Theologica, I. Q. 79 A. 4 and I. Q. 79 A. 8, The
Human Constitution, trans. Richard Regan, (Scranton: University of Scranton Press, 1997) 57.
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inclination is reasoning towards natural knowledge and knowledge
of the supernatural and ultimate goal of human existence. If
humans are inclined towards reason and knowledge, then how can
you evaluate a condition without exposing or opening it to
knowledge? Clearly, Aquinas would not agree with Kretzmann’s
definition, ‘without being overtly evaluative’; since being open and
exposed to knowledge is a condition of reasoning, the potential to
gain knowledge. Further, this definition is a contradiction of
evaluation, since to evaluate is to open or expose to knowledge. It
is also to make a thing, being, or substance evident through
reason. Clearly, this is a problem for Kretzmann’s argument.
Therefore, we restate in light of this, ‘It is the natural conventional
kind of things, with conditions that are both non-evaluative and
evaluative, but not invariably evaluative, and has an important
human function, which is the appropriate kind to apply dismissive
judgment.’o
There is a sidebar to our analysis. Kretzmann points out that
various philosophers have confused Aquinas’ dismissive judgment
as a paradox. This attack on the dismissive judgment comes
mainly from the logical positivists and others opposed to natural
law. Philosophers like John Austin look on the issue of law and
o Kretzmann 9.
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justice as two distinct questions: ‘Does the law exist?’ and ‘Is the
law just?’ From their perspectives, Aquinas’ dismissive judgment,
‘an unjust law is not a law’, does appear to be a paradox (i.e., like
stating, “‘statutes are not laws’ or ‘constitutional is not law’ is
nonsensical”, since by definition they are laws).p They feel that
Aquinas’ dismissive judgment only deals with the first question
(i.e., “does the law exist?”). q However, as pointed out by
Kretzmann, Aquinas does not think or look on dismissive judgment
as an issue of existence. It is an issue of evaluative and non-
evaluative inclusive conditions–is the law complete? Does it meet
all of the conditions to be a law?
B. Summarizing Aquinas’ law
With this preliminary foundation, let us next turn to a summary
of Aquinas’ laws, in particular the linkage between natural law and
human law.
p Kretzmann 8. q Kretzmann 10.
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1. Aquinas classifies the types of law.
For Aquinas, there are four types of law: eternal, natural,
human, and divine. Eternal law or God’s intellect is the basis for
the other three types. The principles of morality, physics, and
mathematics are part of the eternal law. However, humans can
know eternal law only incompletely and with uncertainty. It is
through the natural law that humans can participate in the eternal
law. Natural law is in the form of innate principles of rational
action. Natural law can only be explained on a very limited basis
via participation in eternal law (i.e., man cannot know the eternal
law, although he shows the potential or inclination towards the
supernatural and ultimate goal of human existence). Human law is
the legislation of humans for their governance and natural direction
of humans towards the common good. To be rational, human law
depends on the principles of natural law as derived by reason.
Divine law is the revealed elements of the eternal law. The
Scriptures reveals the eternal law to humans to guide them towards
the supernatural and ultimate goal of human existence.r Since a
legal system operates in human society and human law governs
human society, we next focus our analysis on Aquinas’ natural and
human law and their connective nature.
r Kretzmann 10-11.
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2. Aquinas’ natural law
To incline towards the natural law is human nature, the
inclination of human beings to actualize the essential potentials of
their nature. Humans can recognize as good or bad the objects of
their inclinations. The natural law’s innate precepts are reasoned
as corresponding from these natural recognitions of the objects of
our inclinations. As such, human action and direction are found in
practical reason. s
The first principle of practical reason is that it is inclined toward
action, what is good. “Since every agent acts for an end, which has
the nature of a good…. The good is that which all things seek after.
Therefore, the first precept of law is this: What is good is to be
done and promoted.”t There is a connection between the order of
precepts and natural inclinations toward the natural good. Human
beings have three natural inclinations. First, as with other
substances, they have an inclination towards preservation. Second,
as with other animals, they are inclined towards reproduction.
Lastly, and unique to humans, they have an inclination to reason
toward the supernatural and ultimate goal of human existence and
s Kretzmann 11.t St. Thomas Aquinas, Summa Theologica, I–II. Q. 94 A. 1, Philosophy in the
Middle Ages: The Christian, Islamic, and Jewish Traditions, Eds. Arthur Hyman and James J. Walsh, 2nd ed. (Indianapolis: Hackett, 1977) 532.
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the common good of society.u However, humans can know the
supernatural and ultimate goal of human existence only
incompletely and with uncertainty. Nevertheless, the “precepts of
natural law are innate in us.”v In addition, Kretzmann points out
that for Aquinas, there is an “essential connection between natural
law and conscience.”w In Aquinas, “Conscience is said to be a law of
our intellect because as it is a habit [dispositional state–Kretzmann]
containing the precepts of natural law, which are the first principles
of human actions”x or moral rules.y
Inasmuch as human law depends on the precepts of natural law,
it would seem that human laws are merely derivations of moral
rules. However, this is not the case. For Aquinas, merely deriving
something from the precepts of natural law (i.e., moral rules) does
not constitute a sufficient condition for its inclusion in human law.z
Kretzmann says that the completeness of Aquinas’ human law
requires both evaluative (moral) and non-evaluative (formal)
u St. Thomas Aquinas, Summa Theologica, I–II. Q. 94 A. 1, Hyman and Walsh, 530-531. See also, Kretzmann 11.
v Kretzmann 11.w Kretzmann 11.x Aquinas, Summa Theologica, I–II. Q. 94 A. 1, Hyman and Walsh, 531. I used Kretzmann’s translation of Conscience here as opposed to Aquinas’ use of
‘synderesis’. I have used Kretzmann’s distinction for conformity with his article. It would however seem that an important problem is created by this
use or misuse. I believe that Aquinas makes a careful distinction between
‘conscientia’ as a habit and ‘synderesis’ as a power.y Kretzmann 11.z Kretzmann 11-12.
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inclusive conditions. Finally, it is with reason that humans evaluate
an inclusive condition that is derived from the natural law.
C. Answering the central question
The groundwork and structure of Aquinas’ legal system is behind
us. Let us now proceed to the argument for the assessment of
human law via dismissive judgment in the court of conscience.
1. The basis for the assessment of laws
From reading Aquinas’ works on natural and human law,
Kretzmann deduces that Aquinas’ definition of law has seven
inclusion conditions. These conditions provide the basis for the
assessment of the justness of a law for Aquinas. The inclusive
conditions of law are that they are: (A) a directive of reason, (B)
aimed at the common good, (C) promulgated by the government,
(D) pertaining to a complete community, (E) leading people to or
restraining them from certain actions, (F) have coercive power, and
(G) intended to be obeyed. It is from Kretzmann’s list of conditions
that we continue our assessment of how Aquinas evaluates laws.aa
Of the conditions, (A) and (B) are evaluative (or moral)
conditions and (C)–(G) are non-evaluative (or formal and non-
aa Kretzmann 10-11.
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moral) conditions. Aquinas makes it clear that conditions (A) and
(B) only come into play to determine the essence of a law, if the
formal conditions (C)-(G) have been fulfilled.ab For example, the
board of directors of a fraternity may make rules that fulfill
conditions (A)-(C) and (E)-(G), but because a fraternity is an
incomplete community (i.e., it lacks political sovereignty) the rules
do not fulfill condition (D). Such a rule or law would not even
officially start as rule. “In failing to meet one of the formal
conditions, those… rules fail to count as laws even technically.” ac
For Aquinas, law is an extension of moral rules. Further, morals
rules are derived by way of reasoning from natural law. Kretzmann
also writes that for Aquinas both (A) and (B) are evaluative moral
conditions. The justness of a law is implicit in its rational basis, i.e.,
condition (A). Additionally, the justness of a law is implicit in its
directing a person’s actions towards the common good, i.e.,
condition (B). As such, a law not fulfilling either (A) and/or (B)
would be unjust despite the fact that fulfills conditions (C)-(G).ad
Therefore is would seem clear that it is in conditions (A) and (B)
that dismissive judgment of a law as unjust is clearly relevant. ae
ab Kretzmann 13.ac Kretzmann 13.ad Note the similarity here between this example and in the example of
evaluative inclusive conditions in section II. A. 3. of this paper. ae Kretzmann 13.
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2. The assessment of Aquinas’ laws
The assessment of an actual law is not implicit. However, it is
also not an explicit assessment or possible dismissive judgment; for
Aquinas, the assessment and dismissal of a law requires action by
the intellect through reason. Kretzmann gives us two examples: a
‘tyrannical’ law and ‘violent’ law. In the first case, he quotes
Aquinas, “A tyrannical law, through not being according to reason,
is not a law, absolutely speaking, but rather a perversion of law.”af
For example, a tyrannical law that does not fulfill condition (A) and
only marginally condition (B) would be unjust despite the fact that
it fulfills conditions (C)-(G) (e.g., a tyrannical law is not a just law
because it is contrary to reason and aims for the perverted good of
the tyrant, despite the fact in fulfills conditions (C)-(G)). Finally, in
the second case, he quotes Aquinas, “Human law has the nature of
law insofar as it partakes of right reason [emphasis Ed.].…But
insofar as it deviates from reason, it is called an unjust law and has
the nature, not of law, but of violence.”ag Again, as in the example
above, a ‘violent’ law that does not fulfill condition (A) would be
af Aquinas, Summa Theologica, I-II. Q. 92 A. 1 RObj. 4, Hyman and Walsh, 530.
ag Aquinas, Summa Theologica, I-II. Q. 93 A. 3 ad. 2, On Law, Morality, and Politics, Eds. William P. Baumgarth and Richard J. Regan, S.J., (Indianapolis: Hackett, 1988) 38.
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unjust despite fulfilling the other conditions (B)-(G).ah Therefore,
for Aquinas the assessment or dismissal of a law as unjust always
requires an act of reason (i.e., reasoning from inclusive conditions
that are both non-evaluative and evaluative, but not invariably
evaluative) to judge its completeness.
3. The court of conscience
From the argument on the definition and assessment of law, it is
clear that human laws may be “unjust-I”ai by being contrary to the
common good of society, i.e., the law is either ‘tyrannical’ or
‘violent’.aj Since human law is derived by reasoning from the
natural law, ak the end of human law is the natural inclination
toward the good. In addition, Kretzmann notes a second way a law
may be “unjust-II” is by being contrary or opposed to divine law.
This is explicit with the Christian theological nature of Aquinas’
moral system. No law is just that is contrary to God’s divine law.
It is within these two verdicts, “unjust-I” and “unjust-II”, that we
can answer the justice of a law in terms of civil obedience. But,
ah Again, note the similarity here between these two examples and in the
example of evaluative inclusive conditions in section II. A. 3. of this paper.ai Kretzmann 14. I am using Kretzmann’s notation of “unjust-I” and “unjust-II.”aj Kretzmann 14.ak Aquinas, Summa Theologica, I-II. Q. 95 A. 2, Hyman and Walsh, 537-538. For Aquinas every human law is derived from natural law. He proves this as
follows: (1) if a human law is just, then it is valid; (2) reason is based in the
natural law; (3) justice can only be determined by reason from natural law;
and (4) therefore, since reasoning from the natural law determines justice,
human law is just, if and only if it is derived by reason from the natural law.
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how do we reach the verdict?
The verdict is determined in the ‘court of conscience’. Aquinas
says, “Laws framed by man are either just or unjust. If they be
just, they have the power of binding in the conscience.”al Moreover,
the ‘court of conscience’ is an act of reasoning. Again, humans are
rational beings. “For conscience, according to the very nature of
the word, implies the relation of knowledge to something: for
conscience may be resolved into cum alio scientia. ...Wherefore,
from this explanation of the name, it is clear that conscience is an
act.”am Additionally, the ‘court of conscience’ is not an interest of a
community action, but an interest of the individual, i.e., how an
individual should act. It is through reason’s acting in the ‘court of
conscience’ that determines a dismissive judgment and an
individual’s obligation to follow the law.
As stated in the preliminary groundwork, the following questions
must be answered concerning a dismissive judgment of a law in
terms of civil disobedience: (1) can an individual decide whether a
law is unjust; (2) how can an individual make such a decision; and
al Aquinas, Summa Theologica, I-II. Q. 96 A. 4, Baumgarth and Regan, 70.am Aquinas, Summa Theologica, I. Q. 79 A. 13, Baumgarth and Regan, 3. In fact, Aquinas goes on to say that, conscience “denominates” or names the act,
in this case it names the act of an individual reasoning by way of scientific
deduction.
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(3) what can or should the individual do about an unjust law.an It is
clear that for Aquinas that the answer to question (1) will always be
yes. Individuals can decide by reasoning in the ‘court of
conscience’.
Of the later verdict, an “unjust-II” type, Aquinas says, “laws may
be unjust through being opposed to the divine good; such are the
laws of tyrants inducing to idolatry or to anything else contrary to
the divine law, and laws of this kind must in nowise be observed.”ao
Any law that is contrary to divine law is inherently unjust.
Answering question (2), an individual by reading the Scriptures can
decide if a law is a ‘perversion’ and therefore unjust. As for
question (3), it is clear that “laws that are contrary to the
commandments of God, which is beyond the scope of [human]
power. Wherefore in such matters the human law should not be
obeyed.”ap Therefore, in regards this type of verdict, it is clear that
civil disobedience is not only permissible; it is an obligation of the
individual. Therefore, clearly the dismissive judgment can apply in
this case.aq
an Kretzmann 9.ao Aquinas, Summa Theologica, I-II. Q. 96 A. 4, Baumgarth and Regan, 70.ap Aquinas, Summa Theologica, I-II. Q. 96 A. 4 RObj. 2, Baumgarth and Regan, 71.
aq Kretzmann 16.
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Of the former verdict, an “unjust-I” type, the answer is not as
clear-cut. To answer question (2), an individual by reasoning well
in a scientific manner could make a ‘reasonable’ decision if a law is
unjust (particularly if it is either a ‘tyrannical’ or a ‘violent’ law).
The problem would be the usual “unavoidable empirical difficulty” ar
with the likelihood of a subjective error. However, in answering
question (3), there is a caveat to disobedience. Aquinas posits that
when a law is reasoned to be unjust, an individual is not obligated
to obey the law; however, an individual might be obligated to obey
a law after all–“for the sake of avoiding a scandal or disruption, for
which a person should give up his right”as (i.e., the application of
the Christian ‘turn the other cheek’ doctrine). Aquinas seems to
say that when confronted by an “unjust-I” law, the individual must
weigh the potential harm of resisting the law against the potential
harm the unjust law may cause if left unchallenged.at Therefore, in
the answer to (3), it is unclear whether civil disobedience is an
absolute permissible obligation of the individual.
Therefore, the verdicts or answers to the central question, “Is
civil disobedience allowed in Aquinas’ natural law theory?” is Yes for
ar Kretzmann 16.as Aquinas, Summa Theologica, I-II. Q. 96 A. 4, Baumgarth and Regan, 70.at Kretzmann 16-17.
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“unjust-II” and Yes for “unjust-I”, but maybe we as reasoning
individuals should not disobey the civil law.
III. Passing muster on a ‘morally difficult case’
Does Aquinas’ civil disobedience hold up when explaining a
modern civil disobedience in a ‘morally difficult case’? To answer
this we will examine the abortion issue,au which is a ‘morally difficult
case’. We will use two arguments from Roe v. Wade, 410 U.S. 113
(1973) to inspect this issue. Next, we will hear a reply from
Aquinas using the two developed verdicts from the court of
conscience.
A. The abortion arguments
There are two arguments that will be examined concerning the
abortion issue. One concerns the fetus as only a ‘potential human’.
The second concerns the fetus as not being an ‘actual human’.
Each of these two arguments played central roles in the U.S.
Supreme Court’s ruling in Roe v. Wade, 410 U.S. 113 (1973).av
au Please note that while this topic can raise numerous metaphysical questions,
they are beyond the scope of this paper. As such, we will only touch upon
Aquinas’ metaphysics to support his position on “unjust versus just” laws and
civil disobedience. Additionally, we will also not deal with the modern biology
of pregnancy, the biological and hormonal battle for survival waged between
the embryo/fetus and the mother. While the biological and hormonal ‘battle’
would raise some serious metaphysical problems as well for Aquinas’ theories,
the battle between the mother and the fetus is beyond the scope of this paper.av Although the U.S. Supreme Court argued for abortion, “The State in
promoting its interests in the potentiality of human life, may if it chooses,
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While the two arguments appear similar, to see their dissimilarity
let us examine each argument.
1. A fetus is only a ‘potential human’
An abortion activist would say that we have no obligation, or
right, to protect a fetus as if it were a ‘potential human’. The basic
argument boils down to “Potential possession of [‘commonsense
personhood’] confers not a right, but only a claim, to life.”aw
Because a fetus cannot exist outside the mother it is “extremely
difficult to believe… that a zygote one day after conception is the
sort of being that can have any rights at all, much less the whole
armory of ‘human rights’ including ‘the right to life’.”ax For example,
it is a logical error to say that a child with his or her crayons as a
potential artist is not on that account an actual artist. Therefore,
the fetus, with only a potential for ‘commonsense personhood’, has
only a claim to life whereas, the mother, with actual ‘commonsense
regulate, and even proscribe, abortion….” (Justice Blackman’s opinion in Roe
v. Wade, 410 U.S. 113 (1973), 197). That is, the State may decide at which
point there is a potential human life in support of the ‘common good’ of
society, and then if it has an interest to choose to control and/or forbid
abortion as opposed to unrestricted rights for the mother up until actual birth.
The Court is laying out a gradually increasing claim to the rights for the fetus
as it moves from potential to actual ‘commonsense personhood’.aw Joel Feinberg, “Potentiality, Development, and Rights,” The Problem of
Abortion, Ed. Joel Feinberg, 2nd ed. (Belmont: Wadsworth, 1984) 145. “Editor’s Note: The author explained earlier in the essay that he will use the
letter c as an abbreviation for the collection of characteristics (consciousness,
self-concept, rationality, etc.), whatever may be, that are necessary and
jointly sufficient for ‘commonsense personhood’.” I will replace the c with
[‘commonsense personhood’].ax Feinberg, “Potentiality, Development, and Rights,” 146.
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personhood’, has an actual right, not a claim, to life. It then follows
that the mother in possession of actual ‘commonsense personhood’
with all of its rights has the right to decide.
2. A fetus is not an ‘actual human’
An abortion activist might also say that we have no obligation to
protect a fetus as if it were an ‘actual human’. The argument states
that “all and only those creatures who actually possess
[‘commonsense personhood’] are moral persons [i.e., ‘actual
humans’] …whatever species or category they may happen to
belong to.”ay Therefore, the “status of the fetus as a moral person
[is] straightforward: Since the fetus does not actually possess those
characteristics [of ‘commonsense personhood’] that we earlier listed
as necessary and sufficient for possessing right to life, the fetus
does not possess that right.”az As such, abortion does not violate
the fetus’ right to life, since the fetus does not possess a right to
life. Therefore, the fetus, not being ‘actually human’, has only a
claim to life and the mother, being ‘actually human’, has an actual
ay Feinberg, “Potentiality, Development, and Rights,” 148. It is important to
note that the ‘actual-possession’ criterion would imply that small infants are
not moral persons. The whole issue of infanticide of a physically normal small
infant becomes a very real possibility; since the small infant is not in actual
possession of ‘all’ the criteria of ‘commonsense personhood’.az Feinberg, “Potentiality, Development, and Rights,” 149.
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right, not a claim, to life. It then follows that the mother, being an
‘actual human’ with all of its rights, has the right to decide.
B. The replies from Aquinas’ court of conscience
Aquinas can reply to these two arguments concerning the
abortion issue. Aquinas could reply to both arguments in terms of
an “unjust-II” verdict.ba However, to understand Aquinas’ civil
disobedience, we will examine the first argument that the fetus, as
only a ‘potential human’, is an “unjust-II” verdict. Next, we will
examine the second argument that the fetus, as not being an
‘actual human’, is an “unjust-I” verdict. Let us proceed to examine
each reply by answering questions (1), (2), and (3) concerning
dismissive judgment and civil disobedience.
1. A reply to a fetus is only a ‘potential human’
The reply from Aquinas in terms of an “unjust-II” is that abortion
violates the divine law. Aquinas says that a reasoning human
intellect can know that “the form coming upon the matter makes
the matter itself actually exist, as the soul does to the body.”bb
ba I believe, in fact, that Aquinas would respond to both arguments for abortion
with a verdict that abortion violates divine law. Nevertheless, to understand
fully Aquinas’ civil disobedience, it is prudent to examine the abortion
argument with both verdicts.bb St. Thomas Aquinas, On Spiritual Creatures, A. 1, Philosophy in the Middle
Ages: The Christian, Islamic, and Jewish Traditions, Eds. Arthur Hyman and James J. Walsh, 2nd ed. (Indianapolis: Hackett, 1977) 474.
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During reproduction, the man deposits the form or soul upon the
matter provided by the mother, and the fetus exists.bc Therefore,
the answer to question (1) is that a fetus cannot be merely a
‘potential human’ since it is both soul and matter; thereby it is a
‘human’.bd The Bible, which is divine law, tells man, “Thou shall not
kill.”be For that reason, we answer question (2) that abortion, which
kills the fetus, is a ‘perversion’ and therefore unjust law. It follows
for question (3), “laws that are contrary to the commandments of
God… should not be obeyed.”bf Clearly, Aquinas’ reply to the
argument that a fetus is only a ‘potential human’ would be that the
law is unjust (in terms of “unjust-II”) and that civil disobedience is
not only permissible; it is an obligation.bg
bc Aquinas, On Spiritual Creatures, A. 1, 475. “For it is clear that what belongs to a thing by virtue of the thing itself is inseparable from it. But being belongs
to a form, which is an act, by virtue of itself. And thus, matter acquires actual
being according as it acquires form; while it is corrupted so far as the form is
separated from it.”bd Aquinas, Summa Theologica, I. Q. 75 A. 6, Hyman and Walsh, 501. “Moreover we may take a sign of this from the fact that everything naturally
aspires to being after its own manner.” For example, the seed of a plant has
the form or soul of the completed plant. The seed aspires to become the plant
after its manner. “And for this reason, living things need to have a power of
the soul that brings them to their requisite size.” (Aquinas, Summa Theologica, I. Q. 78 A. 2, RObj. 3, Regan, 50.) If you destroy the seed, then you destroy the future plant. In the sense of form and matter, a fetus is to a
human as a seed is to a plant. be Exodus, Chapter XX, Verse 13.bf Aquinas, Summa Theologica, I-II. Q. 96 A. 4, RObj. 2, Baumgarth and Regan, 71.
bg Kretzmann 16.
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2. A reply to a fetus is not an ‘actual human’
The reply from Aquinas in terms of an “unjust-I” is that abortion
violates the natural law principle; society’s common good is man’s
end of happiness.bh Reproduction is a part of man’s end. For
Aquinas, “the power of generation [reproduction] is the ultimate
and most important and most perfect of these three powers [of the
vegetative soul], as the De Anima says, (Aristotle, De Anima II, 4.
416b23-25) for it belongs to something perfect ‘to produce
something just like itself.’ (Aristotle, De Anima II, 4. 415a26-b7).”bi
Consequently, the answer to question (1) is that a fetus is an
‘actual human’;bj since “we do not imply in the creature a
potentiality to non-being”bk and a fetus is a subsistent creaturebl
produced by humans as a perfect end to a part of its being, it is
thereby an ‘actual human’.bm It then follows that the answer to
bh Aquinas, Summa Theologica, I-II. Q. 90 A. 2, Baumgarth and Regan, 14. For Aquinas, “the last end of human life is bliss or happiness…. Consequently, the
law must needs regard principally the relationship to happiness. Moreover,
since every part is ordained to the whole as imperfect to perfect, and since a
single man is a part of the perfect community, the law must needs regard
properly the relationship to universal happiness.”bi Aquinas, Summa Theologica, I. Q. 78 A. 2, Regan, 14.bj Aquinas, On Spiritual Creatures, A. 1, 474-475. “but as potency which is always accompanied by its act.” Further “matter is being in potency and
becomes actual being through the coming of the form, which serves as the
cause of existence in its regard.” Additionally, as stated above, for Aquinas
the soul coming upon the matter creates the being.bk Aquinas, Summa Theologica, I. Q. 75 A. 6 RObj. 2, Hyman and Walsh, 502.bl Aquinas, Summa Theologica, I. Q. 75 A. 6, Hyman and Walsh, 501.bm Aquinas, Summa Theologica, I. Q. 75 A. 6, Hyman and Walsh, 501. See also Aquinas, Summa Theologica, I. Q. 78 A. 2, RObj. 3, Regan, 50.
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question (2) is abortion is an unjust lawbn since it is contrary to the
ends of man, happiness,bo and the ends of society, the common
good. In terms of the common good, the answer for question (3) is
problematic. As stated above, Aquinas wrote that an individual
might be obligated to obey an unjust law after all– “for the sake of
avoiding a scandal or disruption.”bp When confronting by an
“unjust-I” law, for Aquinas, the individual must weigh the potential
harm of resisting the law against the potential harm the unjust law
may cause if left unchallenged.bq Here are I feel two examples.
First, in the case of a deformed fetus, could the act of abortion be
deemed for the common good of society and merciful for the fetus?
Secondly, in times of famine or pestilence, could the act of abortion
be deemed for the common good of society and merciful for the
fetus? It is therefore, unclear in answering question (3) whether
bn Aquinas, Summa Theologica, I-II. Q. 90 A. 2, Baumgarth and Regan, 14. “Consequently, since the law is chiefly ordained to the common good, any
other precept in regard to some individual work must needs be devoid of the
nature of law, save insofar as it is ordered to the common good.” That is a
law devoid of the nature of law is unjust.bo Aquinas, Summa Theologica, I-II. Q. 90 A. 2, Baumgarth and Regan, 14. “Now the first principle in practical matters, which are the object of the
practical reason, is the last end, and the last end of human life is bliss or
happiness, as stated above. Consequently, the law must needs regard
principally the relationship to happiness. Moreover, since every part is
ordained to the whole as imperfect to perfect, and since a single man is a part
of the perfect community, the law must needs regard properly the relationship
to universal happiness.”bp Aquinas, Summa Theologica, I-II. Q. 96 A. 4, Baumgarth and Regan, 70.bq Kretzmann 16-17.
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civil disobedience would be a permissible obligation or right of the
individual.
Therefore, the replies to the verdicts or answers explaining a
modern civil disobedience in a ‘morally difficult case’ (the abortion
issue) for Aquinas are Yes for “unjust-II” with an obligation to
disobey and Yes for “unjust-I”, but maybe we as reasoning
individuals should not disobey an unjust law for the good of society.
IV. Summing up Aquinas’ civil disobedience
The purpose of this paper was to develop and explain ‘civil
disobedience’ based on Aquinas’ natural law theory. First, we
developed and answered the central question, ‘Is civil disobedience
allowed in Aquinas’ natural law theory?’ We modified the dismissive
judgment argument on from Norman Kretzmann’s article “Lex
Iniusta Non Est Lex: Laws on Trial in Aquinas’ Court of
Conscience”br as the basis for answering this central question.
What we found was that the verdict or answer to the central
question is ‘Yes for “unjust-II” and Yes for “unjust-I”, but maybe we
as reasoning individuals should not act on the verdict for “unjust-I”.
Secondly, we explored whether civil disobedience in Aquinas’
natural law theory passes musters on a ‘morally difficult case.’ To
br Kretzmann 7-19.
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answer this, we examined the abortion issue. We listed and
examined to two arguments for abortion from Roe v. Wade, 410
U.S. 113 (1973). We then examined replies from Aquinas’ court of
conscience. We found that Aquinas’ replies to both arguments were
that abortion is an “unjust” law; per se, for a rational human being
civil disobedience is both an obligation in one verdict and perhaps
an optional right in the other verdict. bs
V. Closing statement
The logic of Aquinas’ replies to the arguments in the abortion
issue are sound within the historical time span and scope of
Aquinas’ moral and metaphysical philosophy. However, for a
‘morally difficult case’ such as abortion, I see real difficulties facing
a modern day Thomist. Primarily, modern biology and biological
anthropology would raise some very difficult metaphysical problems
for Aquinas’ philosophy to answer. Aquinas’ role of semen in
reproduction is brought directly into doubt.bt Many other problems
would face a modern day Thomist. Therefore, because of the
advances and knowledge posited by modern science, I would have
a hard time being a Thomist; nevertheless, even today Aquinas’
bs The distinction between obligation and right was not developed in this paper.
What is meant, is that there is an obligation or duty to disobey a law contrary
to divine law and that there is only an optional right to disobey a law contrary
to civil law. bt Aquinas, Summa Theologica, I. Q. 118 A. 2, Regan, 199.
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philosophy still presents very powerful arguments and explanations
of man and his role in the world.bu
bu The philosophers Dewey and Maritain come directly to mind.
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BIBLIOGRAPHY
� These works provided the basis for the critical analysis.
Aquinas, St. Thomas. Summa Theologica. Philosophy in the Middle Ages: The Christian, Islamic, and Jewish Traditions. Eds. Arthur Hyman and James J. Walsh. 2nd ed. Indianapolis: Hackett,
1977. pp 468-539.
Aquinas, St. Thomas. Summa Theologica. On Law, Morality, and Politics. Eds. William P. Baumgarth and Richard J. Regan, S.J. Indianapolis: Hackett, 1988. I used it both as a primary source for Aquinas and as a cross reference in translation differences between
Kretzmann article and the Hyman and Walsh book.
Aquinas, St. Thomas. Summa Theologica. The Human Constitution. Trans. Richard Regan, S.J. Scranton: University of Scranton Press, 1997.
Kretzmann, Norman. “Lex Iniusta Non Est Lex: ‘Laws on Trial in
Aquinas’ Court of Conscience.” Philosophy of Law. Eds. Joel Feinberg and Hyman Gross. 5th ed. Belmont: Wadsworth, 1995.
pp. 7-19.
� These works provided the basis for the argument and the
rebuttal from Aquinas.
Copleston S.J., Frederick. Aquinas. Baltimore: Penguin 1957.
Feinberg, Joel. “Potentiality, Development, and Rights.” The Problem of Abortion. Ed. Joel Feinberg. 2nd ed. Belmont: Wadsworth, 1984. pp. 145-150.
Feinberg, Joel. “Civil Disobedience in the Modern World.”
Philosophy of Law. Eds. Joel Feinberg and Hyman Gross. 5th ed. Belmont: Wadsworth, 1995. pp. 121-133.
Feinberg, Joel. “The Dilemmas of Judges Who Must Interpret
‘Immoral Laws’.” Philosophy of Law. Eds. Joel Feinberg and Hyman Gross. 5th ed. Belmont: Wadsworth, 1995. pp. 91-112.
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� These works provided the general understanding of Aquinas.
Copleston S.J., Frederick. Mediaeval Philosophy, Part II, Albert the Great to Duns Scotus. A History of Philosophy. Vol.2. New York: Image, 1962.
Gilson, Etienne. History of Christian Philosophy in the Middle Ages. New York: Random House, 1955.
Kretzmann, Norman. “Philosophy of Mind.” The Cambridge Companion to Aquinas. Eds. Norman Kretzmann and Eleonore Stump. Cambridge: Cambridge University Press, 1993. pp. 128-159.
McGrade, A. S., Ed. The Cambridge Companion to Medieval Philosophy. Cambridge: Cambridge University Press, 2003.
Wippel, John F. “Metaphysics.” The Cambridge Companion to Aquinas. Eds. Norman Kretzmann and Eleonore Stump. Cambridge: Cambridge University Press, 1993. pp. 85-125.
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